CHAPTER XIV
GENERAL DEFENCES AND MITIGATING FACTORS

Division B: Defences and Mitigating Factors Relating to the Mental State

PART VI
MINORITY

230 When child between seven and fourteen years may be held criminally liable
(1) The presumption referred to in section seven as to the criminal incapacity of a child between the age of seven and below the age of fourteen years may be rebutted if, at the time of the commission of the crime for which such child is charged, the child was sufficiently mature
(a) to understand that his or her conduct was unlawful or morally wrong; and
(b) to be capable of conforming with the requirements of the law.
(2) Subsection (1) shall apply to all crimes, whether or not any form of intention, knowledge, realisation or negligence is required for their commission.
(3) In deciding, for the purposes of subsection (1), whether or not a child was sufficiently mature to have the understanding and capacity referred to in that subsection, a court shall take into account the following factors, in addition to any others that are relevant in the particular case
(a) the nature of the crime with which the child is charged; and
(b) the child’s general maturity and family background; and
(c) the child’s knowledge, education and experience; and
(d) the child’s behaviour before, during and after the conduct which forms the subject of the charge.
(4) Where a child who is of or over the age of seven years but under the age of fourteen years does or omits to do anything in the presence of an older person whom in all the circumstances the child would be expected to obey, it shall be presumed, in any criminal proceedings arising out of that conduct, that the child was acting under compulsion from that older person, unless the contrary is proved.
(5) For the purposes of subsection (4), a child shall be deemed to be in the presence of an older person if the older person is so placed as to be able to control the child’s conduct.

231 Attorney-General to authorise prosecutions of children under fourteen years
No proceedings in respect of any crime shall be instituted or continued against any person who is under the age of fourteen years, other than proceedings for the purposes of remand, without the authority of the Attorney-General.

CHAPTER XIV
GENERAL DEFENCES AND MITIGATING FACTORS

Division B: Defences and Mitigating Factors Relating to the Mental State

PART IX
PROVOCATION

238 Provocation in relation to crimes other than murder
Except as provided in section two hundred and thirty-nine and subject to any other enactment, provocation shall not be a defence to a crime but the court may regard it as mitigatory when assessing the sentence to be imposed for the crime.

239 When provocation a partial defence to murder
(1) If, after being provoked, a person does or omits to do anything resulting in the death of a person which would be an essential element of the crime of murder if done or omitted, as the case may be, with the intention or realisation referred to in section forty-seven, the person shall be guilty of culpable homicide if, as a result of the provocation
(a) he or she does not have the intention or realisation referred to in section forty-seven; or
(b) he or she has the intention or realisation referred to in section forty-seven but has completely lost his or her self-control, the provocation being sufficient to make a reasonable person in his or her position and circumstances lose his or her self-control.
[Subsection amended by section 31 of Act 9 of 2006.]
(2) For the avoidance of doubt it is declared that if a court finds that a person accused of murder was provoked but that
(a) he or she did have the intention or realisation referred to in section forty-seven; or
(b) the provocation was not sufficient to make a reasonable person in the accused’s position and circumstances lose his or her self-control;
the accused shall not be entitled to a partial defence in terms of subsection (1) but the court may regard the provocation as mitigatory as provided in section two hundred and thirty-eight.

CHAPTER XIV
GENERAL DEFENCES AND MITIGATING FACTORS

Division C: Defences and Mitigating Factors Relating to Unlawfulness

PART X
AUTHORITY

240 Public authority
(1) Subject to this section, the fact that a person is authorised or permitted by an enactment to do or omit to do any thing shall be a complete defence to a charge alleging the commission of a crime of which that conduct is an essential element.
(2) Subject to this section, the fact that a person did or omitted to do any thing as a duly authorised official, employee or agent of the State and in the proper exercise of that authority shall be a complete defence to a charge alleging the commission of a crime of which that conduct is an essential element.
(3) A person shall not be entitled to rely on the defence referred to in
(a) subsection (1), unless his or her conduct was in all respects authorised or permitted by the enactment concerned;
(b) subsection (2), unless it was lawful for the State to give the authority concerned.

241 Discipline of children
(1) In this section
“guardian” means a person, other than a school teacher in his or her capacity as such, who has the lawful custody, charge or care of a minor person, whether permanently or temporarily;
“minor”, in relation to a person, means that the person is under the age of eighteen years;
“school” includes an educational institution of any kind;
“school-teacher” means the head or deputy head of a school.
(2) Subject to this section
(a) a parent or guardian shall have authority to administer moderate corporal punishment for disciplinary purposes upon his or her minor child or ward;
(b) a school-teacher shall have authority to administer moderate corporal punishment for disciplinary purposes upon any minor male pupil or student;
and, where moderate corporal punishment is administered upon a minor person by a parent, guardian or school¬teacher within the scope of that authority, the authority shall be a complete defence to a criminal charge alleging the commission of a crime of which the administration of the punishment is an essential element.
(3) Subject to this section, any person who administers moderate corporal punishment upon a minor person under authority delegated to him or her by a parent, guardian or school-teacher shall have a complete defence to a criminal charge alleging the commission of a crime of which the administration of such punishment is an essential element, if it would have been lawful for the parent, guardian or school-teacher to have administered such punishment himself or herself.
(4) No school-teacher or person acting under authority delegated to him or her by a school-teacher shall administer corporal punishment upon a female pupil or student.
(5) When administering corporal punishment upon a minor male pupil or student at his or her school, a school-teacher shall comply with any lawful rules, regulations or administrative instructions which apply to the administration of corporal punishment at his or her school.
(6) In deciding whether or not any corporal punishment administered upon a minor person is moderate for the purposes of this section, a court shall take into account the following factors, in addition to any others that are relevant in the particular case
(a) the nature of the punishment and any instrument used to administer it; and
(b) the degree of force with which the punishment was administered; and
(c) the reason for the administration of the punishment; and
(d) the age, physical condition and sex of the minor person upon whom it was administered; and
(e) any social attitudes towards the discipline of children which are prevalent in the community among whom the minor person was living when the punishment was administered upon the minor person.

242 Purported corporal punishment of spouses unlawful
It shall not be lawful for a person to purport to administer corporal punishment upon his or her spouse, whatever the nature of their marriage and wherever their marriage may have been contracted.

PART XI
COMPULSION

243 Requirements for compulsion to be complete defence
(1) Subject to this Part, the fact that a person accused of a crime was subjected to compulsion when the person did or omitted to do anything that is an essential element of the crime shall be a complete defence to the charge if
(a) the compulsion consisted of a threat
(i) unlawfully to kill him or her or cause him or her serious bodily injury or to kill or cause serious bodily injury to some other person; or
(ii) unlawfully to cause him or her financial or proprietary loss;
and
(b) he or she believed on reasonable grounds that implementation of the threat referred to in paragraph (a) had begun or was imminent; and
(c) the threat referred to in paragraph (a) was not brought about through his or her own fault; and
(d) he or she believed on reasonable grounds that he or she could not escape from or resist the threat referred to in paragraph (a) and that his or her conduct was necessary to avert the implementation of the threat; and
(e) by his or her conduct he or she did no more harm than was reasonably necessary to avert the implementation of the threat referred to in paragraph (a), and no more harm than was unlawfully threatened.
(2) Where a person voluntarily associates himself or herself with one or more other persons knowing or realising that there is a real risk or possibility that they will involve him or her in the commission of a crime, any threat made against him or her by one or more of those other persons for the purpose of inducing him or her to commit a crime shall be deemed, for the purpose of paragraph (c) of subsection (1), to have been brought about through his or her own fault.

244 Additional requirements for compulsion to be complete defence to murder
(1) Subject to subsection (3), the fact that a person accused of murder was subjected to compulsion when he or she did or omitted to do anything that is an essential element of the crime shall not be a complete defence to the charge unless the following requirements are satisfied in addition to those specified in paragraphs (b), (c) and (d) of subsection (1) of section two hundred andforty-three
(a) the compulsion took the form of a threat unlawfully to kill the accused or some other person immediately if the accused did not kill or assist in killing the deceased; and
(b) the accused could not escape from or resist the threat referred to in paragraph (a); and
(c) the accused had no warning of the threat referred to in paragraph (a) to enable him or her to forestall it, whether by reporting the matter to the police or by other means.
(2) If the requirements referred to or specified in subsection (1) are satisfied, the defence of compulsion shall be a complete defence to a charge of murder, whether the accused is charged as an actual perpetrator or as an accomplice.

PART XII
CONSENT

245 Requirements for consent to be complete defence
(1) Subject to this Part, where a person consents to any conduct which is likely to cause harm to his or her person, proprietary rights or other interests, his or her consent shall be a complete defence to a charge against any other person alleging the commission of a crime of which that conduct forms an essential element, if
(a) the interests of the community as a whole are not adversely affected by the conduct to any substantial degree; and
(b) the consent is given prior to the conduct, not as ratification afterwards; and
(c) the person who gives the consent is
(i) capable in law of giving such consent; and
(ii) able to understand the nature and possible consequences of the conduct and to give informed consent thereto;
and
(d) the consent is real and is not induced by threat, force, fraud or mistake intentionally or knowingly induced by the person charged with the crime; and
(e) the giving of the consent is not contrary to any law or to public policy.

(2) Where a person is charged with rape, aggravated indecent assault, indecent assault or any other crime constituted by the absence of consent by another person to any conduct, the fact that the other person consented to the conduct shall be a complete defence to a charge alleging the commission of that crime if—
(a) the consent is given prior to the conduct, not as ratification afterwards; and
(b) the person who gives the consent is—
(i) capable in law of giving such consent; and
(ii) able to understand the nature and possible consequences of the conduct and to give informed consent thereto;
and
(c) the consent is real and is not induced by threats, force, fraud or mistake intentionally or knowingly induced by the person charged with the crime.

246 When consent no defence
It shall not be lawful for any person to consent to—
(a) being killed; or
(b) subject to this Part, the infliction of serious bodily injury upon himself or herself;
and such consent shall not be a defence to any criminal charge arising out of such killing or the infliction of such injury.

247 Consent to medical treatment for therapeutic purposes
(1) In this section—
“patient” means a person to whom medical treatment is given or upon whom a medical operation is performed;
“qualified person”, in relation to any medical treatment or operation, means a person who, by virtue of his or her qualifications or training, is in all the circumstances qualified to give the medical treatment or perform the medical operation.
(2) Where, in order to cure or alleviate any disease or disability from which a patient suffers or is likely to suffer, a qualified person gives any medical treatment to or performs any medical operation upon a patient—
(a) with the consent of the patient; or
(b) if the patient is incapable of giving consent, with the consent of the patient’s parent, guardian, spouse or any other person capable in law of giving consent on behalf of the patient; or
(c) in the case of a minor to whom section 76 of the Children’s Act [Chapter 5:06] applies, with authority given in terms of that section;
such consent or authority shall be a complete defence to a charge of murder or assault arising out of that treatment or operation if—
(i) the consent complies with paragraphs (b), (c) and (d) of subsection (1) of section two hundred andforty-five; and
(ii) the treatment or operation is carried out competently in accordance with recognised medical procedures.
(3) If a qualified person believes on reasonable grounds that—
(a) a patient urgently requires medical treatment or a medical operation to cure or alleviate any disease or disability from which the patient is suffering or is reasonably suspected of suffering; and
(b) it is not practicable in the circumstances to obtain the consent or authority required by or referred to in subsection (2);
he or she may give the treatment or perform the operation, as the case may be, without having obtained such consent or authority.
(4) The fact that a qualified person gave treatment or performed an operation in terms of subsection (3) shall be a complete defence to a charge of murder or assault arising out of that treatment or operation if the treatment or operation is carried out competently in accordance with recognised medical procedures.

248 Consent to medical treatment for non-therapeutic purposes
(1) In this section—
“patient” means a person to whom medical treatment is given or upon whom a medical operation is performed;
“qualified person”, in relation to any medical treatment or operation, means a person who, by virtue of his or her qualifications or training, is in all the circumstances qualified to give the medical treatment or perform the medical operation.
(2) Where a qualified person, with the consent of the patient concerned, gives any medical treatment to or performs any medical operation upon a patient—
(a) otherwise than to cure or alleviate any disease or disability; or
(b) in order to sterilise the patient;

such consent or authority shall be a complete defence to a charge of murder or assault arising out of that treatment or operation if—
(i) the consent complies with paragraphs (b), (c) and (d) of subsection (1) of section two hundred andforty-five; and
(ii) the treatment or operation is carried out competently in accordance with recognised medical procedures; and
(iii) in a case where the treatment consists of the administration of any new, untried or experimental drug, medicine or allied substance, such treatment is conducted pursuant to and in accordance with the procedures prescribed for the clinical trial of a medicine under the Part III of the Medicines and Allied Substances Control Act [Chapter 15:03].”.

249 Consent to sporting injuries
(1) A person who takes part in any lawful sporting activity shall be deemed to have consented to undergo the risk of sustaining any injury or destruction or loss of property which is normally inherent in participation in such sporting activity.
(2) Consent referred to in subsection (1) shall not be a defence to any crime where—
(a) the accused inflicted the injury, destruction or loss which forms the subject of the charge deliberately and in contravention of the rules of the sporting activity concerned; and
(b) the injury, destruction or loss which forms the subject of the charge does not fall within the risks normally inherent in participation in the sporting activity concerned.

250 Consent to injuries from customary or religious practices
(1) In this section—
“slight bodily injury” includes the circumcision of a male person but does not include the practice of genital mutilation of a female person commonly known as “female circumcision”.
(2) Consent by a person to slight bodily injury inflicted—
(a) in accordance with the customs or traditional practices of the community to which the person belongs; and
(b) for the purposes of or in accordance with the practice of his or her religion or custom;
shall be a complete defence to a charge alleging the commission of a crime constituted by the infliction of such injury.

251 Consent given on behalf of other persons
Subject to this Part, where a person is incapable in law of giving consent to anything, whether because of minority, unconsciousness, insanity or otherwise, consent given by the person’s parent, guardian, spouse or any other person capable in law of giving consent on his or her behalf shall be as effective as if the consent had been given by the person himself or herself.

CHAPTER XIV
GENERAL DEFENCES AND MITIGATING FACTORS

Division C: Defences and Mitigating Factors Relating to Unlawfulness

PART XIV
DEFENCE OF PROPERTY

256 Interpretation in Part XIV of Chapter XIV
In this Part
“property” includes property of any description and any interest or right therein;
“unlawful attack” means any unlawful conduct which endangers or infringes a person’s property.

257 Requirements for defence of property to be complete defence
(1) Subject to this Part, the fact that a person accused of a crime was defending his or her or another person’s property against an unlawful attack when he or she did or omitted to do anything which is an essential element of the crime shall be a complete defence to the charge if
(a) when he or she did or omitted to do the thing, the unlawful attack had commenced or was imminent; and
(b) his or her conduct was necessary to avert the unlawful attack; and
(c) the means he or she used to avert the unlawful attack were reasonable in all the circumstances; and
(d) any harm or injury caused by his or her conduct
(i) was caused to the attacker and not to any innocent third party; and
(ii) was not grossly disproportionate to that liable to be caused by the unlawful attack.
(2) In determining whether or not the requirements specified in subsection (1) have been satisfied in any case, a court shall take due account of the circumstances in which the accused found himself or herself, including any knowledge or capability he or she may have had and any stress or fear that may have been operating on his or her mind.
(3) In determining whether or not any means used by a person to avert an unlawful attack were reasonable, or whether or not any harm or injury caused to an attacker was proportionate to that liable to be caused by an unlawful attack, a court shall have regard to the nature of the property which the person was trying to protect and its value to him or her.

258 Killing in defence of property
A person accused of a crime involving the killing of another person shall not be entitled to rely upon a defence in terms of this Part unless
(a) the accused resorted to killing after taking all other possible steps to protect the property concerned; and
(b) the property concerned could not have been defended by any means except by killing; and
(c) the property concerned was of vital importance to the accused; and
(d) the accused believed on reasonable grounds that he or she would not receive adequate compensation for any destruction, damage or injury caused to the property concerned by the unlawful attack.

259 When defence of property partial defence to murder
If a person accused of murder was defending his or her or another person’s property against an unlawful attack when he or she did or omitted to do anything that is an essential element of the crime, he or she shall be guilty of culpable homicide if all the requirements specified in sections two hundred and fifty-seven and two hundred andfifty-eight are satisfied in the case except that the means he or she used to avert the unlawful attack were not reasonable in all the circumstances.

PART XV
ENTRAPMENT

260 Entrapment no defence to crimes
It shall not be a defence to a crime that the accused was trapped into committing the crime concerned, that is to say that the police or other authority or person, by using any inducement or encouragement, caused the accused to commit it for the purpose of obtaining evidence of its commission, but a court may, where it considers that unfair or undesirable entrapment methods were used by the police or other authority or person, take the manner of such entrapment into account as a factor in mitigation of sentence.

PART XVI
IMPOSSIBILITY

261 Requirements for impossibility to be complete defence
(1) Where a person is accused of a crime of which an essential element consists of a failure, omission or refusal to do anything, the fact that it was physically impossible for the accused to do that thing shall be a complete defence to the charge if
(a) the impossibility was absolute, that is to say, if it was objectively impossible for anyone in the accused’s position to have done that thing; and
(b) the impossibility was not due to the accused’s own fault.
(2) For the purposes of subsection (1), the fact that it is extremely difficult for a person to do a thing shall not constitute impossibility.
(3) This section shall not prevent a court, when imposing sentence upon a convicted person, from taking due account of any difficulty experienced by him or her in complying with a law.

CHAPTER XIV
GENERAL DEFENCES AND MITIGATING FACTORS

Division C: Defences and Mitigating Factors Relating to Unlawfulness

PART XIX
TRIVIALITIES

270 Person charged with trivial crime entitled to acquittal
(1) Subject to this section, a person charged with a crime shall be entitled to be acquitted of the charge if the conduct constituting the crime is of a trivial nature.
(2) In deciding whether a crime is of a sufficiently trivial nature to justify the acquittal of the person charged in terms of subsection (1), a court shall take into account the following factors in addition to any others that are relevant to the particular case
(a) the extent of any harm done by the commission of the crime to any person or to the community as a whole; and
(b) the extent to which it appears, from the enactment which created the crime, that the lawmaker wished to prohibit conduct such as that perpetrated by the accused; and
(c) whether or not an acquittal will encourage other persons to commit the crime concerned.
(3) Where a crime is by its nature trivial, that is, where the conduct prohibited by the enactment concerned does little harm either to individual persons or to the community as a whole, a court shall not acquit a person charged with such a crime in terms of this section unless the conduct of the person charged is of a trivial nature in relation to the most serious conduct prohibited by the particular provision of the enactment concerned.

PART XX
UNAVOIDABLE ACCIDENT

271 Interpretation in Part XX of Chapter XIV
In this Part
“unavoidable accident” means a circumstance or event such as
(a) a heart attack or epileptic blackout suffered whilst driving a motor vehicle by a person who has not previously suffered from one and who has no reason to suppose that he or she might do so;
(b) a swarm of bees flying into a moving motor vehicle and stinging the driver;
(c) a stone thrown up by a passing vehicle and striking and stunning the driver of a moving motor vehicle;
the occurrence of which is so unlikely that a reasonable person, if in the position of the person whose conduct is under consideration, would not take steps to guard against it.

272 Requirements for unavoidable accident to be complete defence
Subject to this section, the fact that a person charged with a crime did or omitted to do anything that is an essential element of the crime as a result of an unavoidable accident shall be a complete defence to the charge if
(a) the unavoidable accident did not occur through his or her own fault; and
(b) a reasonable person, faced with the same unavoidable accident in the same circumstances, would not have been able to avoid the same conduct as would have constituted the crime.